Luzerne County's chief public defender sues county over inadequate funding for his office

Luzerne County’s chief public defender is suing the county on behalf of himself and indigent adult criminal defendants, contending the county’s failure to provide adequate resources has affected his office’s ability to provide proper legal representation to the indigent clients.

The lawsuit was jointly filed by attorneys with the American Civil Liberties Union of Pennsylvania and the Philadelphia law firm of Dechert LLP.

The ACLU of Pa. made available copies of the lawsuit, which was filed at the Luzerne County Court of Common Pleas.

The main plaintiff in the case is Luzerne County Chief Public Defender Al Flora, Jr.

In addition to the county, a codefendant named in the suit is County Manager Robert C. Lawton.

The 43-page lawsuit claims that the county has failed to allocate sufficient funding to the Office of the Public Defender, which has resulted in the “sub-constitutional representation to many indigent criminal defendants and the complete deprivation of representation to many others.”

“Defendants’ deliberate indifference to the funding needs of the OPD had led to a variety of systemic problems, including severe understaffing, that has resulted in lawyers having overwhelming workloads and thus being unable to provide the basic elements of constitutionally adequate representation,” the lawsuit states.

In addition to Flora, who has been the county’s chief public defender since May 2010, the other plaintiffs named in the class action suit are Hazelton, Pa. resident Samantha Volciak, Hanover Township resident Yolanda Holman and Clairton resident Charles Hammonds.

All three are classified as indigent persons who have been charged with various crimes by the Luzerne County District Attorney’s Office and who qualify for public representation, but who have been deprived of legal counsel due to the budgetary issues experienced by the Public Defender’s Office.

The lawsuit accuses Luzerne County of violating Pennsylvania’s Public Defender Act, which requires every county, except Philadelphia, to appoint a public defender to provide representation to indigent criminal defendants.

The civil action seeks a preliminary injunction to allow the Office of Public Defender to continue to decline representation until caseloads reach manageable levels, to lift a hiring freeze to allow the office to fill numerous vacancies, and to order the county to pay for private counsel to represent the more than 300 indigent criminal defendants who are currently without legal representation.

Late last year, the suit states, Flora, whose office was faced with limited resources after county commissioners refused his requests to authorize adequate funding, restricted the types of cases attorneys from his office would take on to serious matters only, such as murder, sex crimes and other felonies.

In a statement, the legal director of the ACLU of Pa., Witold “Vic” Walczak, said Flora’s “decision to risk his job and career by suing his employer is a courageous one.”

Reggie Shuford, the executive director of the ACLU of Pa., followed up with his own statement, saying that the right to adequate legal counsel in this country applies to everyone, “not just those who can afford it.

“Luzerne County’s failure to meet even the most basic constitutional standards for legal representation has life-long consequences for those who must rely on the Office of the Public Defender for their defense,” Shuford said.

The lawsuit goes on to claim that Luzerne County has refused to adequately fund the OPD for years, and often provides twice as much funding to the District Attorney’s Office.

It mentions the “Kids for Cash” scandal, in which two former Luzerne Common Pleas Court judges were eventually sent to prison for their role in a scheme to send juvenile defendants to privately run detention facilities in exchange for compensation and favorable treatment, as partially being the result of underfunding at the Office of the Public Defender.

Flora took the helm at the OPD in the midst of the judicial scandal.

According to the ACLU of Pa., state records showed that 50 percent of juveniles who appeared in Luzerne County Juvenile Court during the time of the Kids for Cash scandal appeared without the benefit of counsel, what the suit says may have been in part due to the underfunding situation.

Walczak, the ACLU of Pa.’s legal director, said in his statement that the “right to counsel means more than having a warm body with a law degree assigned to you. Under our system of justice, defense lawyers must have the time and resources to counter the prosecution with equal vigor. This is not happening in Luzerne County.”

The suit claims that the lack of funding and resources at the OPD has resulted in missed deadlines in appeals because attorneys with no appellate experience are handling those cases; no representation of clients at preliminary hearings; repeated requests for continuances because of overwhelming attorney caseloads; little consultation with clients throughout the legal process; attorneys spending valuable time on clerical matters since the Adult Unit has no paralegals or trial assistants; and inadequate investigation in cases since the OPD only employs three investigators to assist 21 attorneys.

On the latter, the suit contrasted this with the fact that the District Attorney’s Office in 2010 had 10 detectives assisting 26 attorneys.

According to the ACLU of Pa., Pennsylvania is now the last state in the nation that does not provide funding to the counties’ public defenders offices. Under the state’s Public Defender Act, every county in Pennsylvania, except Philadelphia, must appoint a public defender to provide representation to indigent criminal defendants prosecuted in its county.